JUDGMENT 1. - The two accused appellants Ashgar Khan and Jahangir Khan along with a few others were tried by the learned Additional Sessions Judge, Gangapurcity in Sessions Case No.2/1987 for offence under section 302 and other sections of the I.P.C. The learned Additional Sessions Judge under its judgment dated 19th February 1990 convicted both the accused-appellant under section 302 in I.P.C. and sentenced each of them to imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to further suffer six months rigorous imprisonment. The other accused persons were acquitted. 2. The facts of the case are contained in detail in the judgment of the learned Addl. Sessions Judge and suffice to say that the dispute relates to Khasra No.1846/5947 situated in village Piloda which in revenue record was entered as Sivaychak. The Complainant party i.e. Ali Khan PW 8 and others claimed that they were in cultivatory possession of the said land and the accused persons claimed that they were in possession of the land and it had been wrongly recorded as 'Sivaychak' in the revenue record. A suit for correction of entries had been filed against the land holders the State of Rajasthan and in that Suit No.73/86 Fakira v. Land Holders , on an application under section 212 of the Tenancy Act, 1955 an injunction had been issued against the land holder, restraining it from dispossessing Fakira and others. The case of the prosecution is that on 8th October 1986 at 11-12 noon on having come to know that same day in the morning the accused persons had damaged their mud-wall, when they went to the fields and tried to re-construct the mud-wall, the two accused appellants along with others who had been acquitted came there from their nearby fields. They were armed with Axe and Lathis and caused injuries to Sultan, Shafi and others as a result of which both Sultan and Shafi died. A report of this incident was lodged by Ali Khan PW 8 in Police Station Vazirpur District Sawai Madhopur on the day of occurrence at 6.30 p.m. The distance of the police station was 6 Km. and the case was registered under section 147, 148, 447 and 323 I.P.C. and investigation was set in motion. 3. A report of this incident was lodged by Ali Khan PW 8 in Police Station Vazirpur District Sawai Madhopur on the day of occurrence at 6.30 p.m. The distance of the police station was 6 Km. and the case was registered under section 147, 148, 447 and 323 I.P.C. and investigation was set in motion. 3. The two persons died and when they were alive their injuries were examined and the doctor found that so far Shafi is concerned, he had as many as 17 injuries including a bruise 1/2"x1/4" on the right side of the fore-head. When the X-ray was taken, it was found that there was a fracture of the skull bone. The condition of Shafi deteriorated and he died as a result of the injuries and postmortem was conducted of the dead-body by PW 7 Dr. Nand Lal Sharma and in the opinion of the doctor vide his post morterm report Ex.P.29, the deceased died as a result of the internal brain haemorrahage and coma due to severe nature of head injury as a result of injury No.1 which was caused by blunt weapon. On opening of the skull, the doctor found that there was a fracture of right franto parital bone due to external injury No.l. 4. On conducting the autopsy of the dead-body of Sultan, Dr. Shri Manohar Meena found that there was an incised wound 2"xl /4" bone deep on the centre of the head. There was also an incised wound 1/2"xl /8"xl /8" on the left temporal region and there were two other injuries also. On opening of the head it was found that there was a fracture of the skull bone on the centre of the head and in the opinion of the doctor the deceased died as a result of the head injury and all the injuries were ante-morterm in nature. 5. The other accused persons were also examined but we are not presently concerned because so far as they are concerned, none of the appellants was held guilty for having caused injuries to them. They were acquitted and each of the accused appellants have been convicted and sentenced for having caused death of the above named two deceased persons. 6. 5. The other accused persons were also examined but we are not presently concerned because so far as they are concerned, none of the appellants was held guilty for having caused injuries to them. They were acquitted and each of the accused appellants have been convicted and sentenced for having caused death of the above named two deceased persons. 6. After the close of the prosecution evidence each of the accused appellant was examined under section 313 Cr.P.C. and it will appear from their statements record under section 313 Cr.P.C. that they have said that they will file written statement and it should be considered as their statement. The accused-appellants filed their written statement and a perusel of the same will show that they have claimed that they were in possession of the disputed Khasra No.1846/5947 and their case is that there was a settlement about 31/2 years ago in the village Piloda and some inadvertant mistakes were committed as a result of which so far as old khasra No.1655 is concerned which was in khatedari of Fakira, Ashgar Khan and Jahangir Khan and was measuring 17 acres and two acres was entered in the name of Fakira, Ashgar Khan and Jahangir Khan and a new Khasra No.1846 was assigned to it. So far as remaining 15 acres is concerned, it was entered as 'Sivaychak'. But despite that the Khatedars Fakira, etc. were paying the land revenue and they were in possession and it also filed a suit. 7. The learned Additional Sessions Judge in its detailed judgment has held that it was the accused persons who were in possession of the disputed Khasra No. 1846/5947 situated in village Piloda. He had also held that the prosecution has failed to prove that on the day of incident or even earlier to it Ali Khan PW 8 and others were ever in possession of the aforesaid Khasra number. In other words the case of the prosecution that Ali Khan and others were in possession of the land in dispute and accused persons had trespassed was not held to be proved by the learned Addl. Sessions Judge. It may also be stated that initially an offence under section 147 I.P.C. was also registered but when the charge-sheet was filed, it was filed under section 302 I.P.C. against the accused persons. The learned Addl. Sessions Judge. It may also be stated that initially an offence under section 147 I.P.C. was also registered but when the charge-sheet was filed, it was filed under section 302 I.P.C. against the accused persons. The learned Addl. Sessions Judge, therefore, has recorded a categorical finding that the prosecution has failed to prove that the complainant party was in possession of the disputed land on the day of occurrence, rather he recorded a finding that accused was in possession of the disputed land. 8. After the recording of the aforesaid finding, the learned Addl. Sessions Judge proceeded to examine the case of the right of private defence and held that though the accused persons had a right of private defence of property, but whereas the two accused-appellants exceeded the right of private defence, others did not so exceed and therefore, others were acquitted and the accused-appellants were convicted and sentenced as aforesaid. 9. The question is whether the approach of the learned Additional Sessions Judge was correct or not ? It may be stated that so far as accused appellants are concerned, it was not the case of the prosecution that the accused appellant Jahangir Khan is said to have been armed with an Axe and is said to have caused single injury on Sultan as a result of which he fell on the ground. When Shafi, the other deceased came to his rescue, it was the other accused appellant Ashgar Khan who caused an injury on his head. Thus, both the accused appellants are said to have caused one blow each to the two deceased persons. On behalf of the accused persons a case of right of private defence of persons as well as of property was set up and in support of it the injury reports of Hamid, Fakira, and Babudi were filed as Ex.D-1, D-2 and D-4 respectively. It will appear from the perusal of injury reports that Fakira received as many as three injuries including incised wound and there was bleeding in the wound. Smt. Babudi received four injuries including lacerated wound on the right side of the fore-head. The injuries of other accused persons were not explained. 10. It will appear from the perusal of injury reports that Fakira received as many as three injuries including incised wound and there was bleeding in the wound. Smt. Babudi received four injuries including lacerated wound on the right side of the fore-head. The injuries of other accused persons were not explained. 10. We fail to understand as to when each of the accused persons were said to have caused one injury to the two deceased persons, when they had a right of private defence of persons as well as of property, how they can be said to exceed the right of private defence. Under section 100 of the I.P.C. even if there is apprehension of grievous hurt if the right of private defence of body is not exercised, the right extends even to causing of death. In the instant case, therefore, as said earlier, it was a case of exercise of not only private defence of property, but also of exercise of right of private defence of person and it will also appear from the injury reports of the persons on behalf of the accused party that the apprehension of the grievous hurt could not be excluded. If thus, the right of private defence was exercised, single blow was given as said earlier by each of the accused persons, to each of the deceased, how can it be a case exceeding right of private defence. 11. Consequently, we hereby allow this appeal and set aside the judgment of the learned Additional Sessions Judge convicting and sentencing each of the accused appellants under section 304 Part I of the I.P.C. One of them is on bail. Ashgar Khan need not surrender to the bail bonds. The bail bonds stand discharged. Jahangir Khan shall be released forthwith, if not wanted in any other case.Appeal allowed. *******